Monday, August 31, 2015

Findings from the Austin Law Firm Diversity Report Card recently revealed an increase in the number of minority attorneys employed in the city’s biggest law firms. Now in its fourth year, the annual report—a joint effort between the Hispanic Bar Association of Austin, the Austin Black Lawyers Association, the Austin Asian American Bar Association, the South Asian Bar Association of Austin, and the Austin LGBT Bar Association—surveyed Austin’s 30 largest firms on the percentage of minority attorneys and minority partners they employ.

In order to receive an A on the report card, a law firm must meet or exceed the percentage of minority attorneys that compromise all attorneys licensed to practice in Travis County—15 percent. Law firms below 7.5 percent received a failing grade.

This year marks the first time that the Diversity Report Card Committee has factored in data on openly lesbian, gay, bisexual, and transgender employees in firms. It also introduced a detailed breakdown of the results, identifying the number of reported partners, counsel, and associates from each minority group.

“The grades of the firms reflect an understanding and appreciation of diversity in both the workplace and the practice of law,” said Rudolph Metayer, a DRC Committee co-chair representing the Austin Black Lawyer’s Association. “It is showing how far we have come and that we still have work to do.”

For more information and the complete results of the Law Firm Diversity Report Card, go to austinblacklawyers.org.

Starting off our review of Friday night’s wave of opinions is a hedge fund securities case arising out of the 2008 financial crash. Plaintiffs contended that the defendants had falsely misrepresented that other investors’ redemption requests “were not significant,” leaving them in the lurch when the fund imploded. The trial court granted summary judgment for the defendants, and the Court of Appeals affirmed. Plaintiffs sought to avoid a “scheme of arrangement” issued by the Bermuda Supreme Court that established how the fund was to be liquidated, but the Court of Appeals held that the plaintiffs were bound by that instrument as a foreign judgment. The Court also held that there was no evidence of reliance by the plaintiffs on the defendants’ alleged misrepresentations, concluding that their testimony was speculative on what they would have done if they had been informed of the true rate of redemption.

In 2013, D Magazine published an article that labeled Janay Bender Rosenthal as “The Park Cities Welfare Queen,” based on her receipt of benefits under the Supplemental Nutriotional Assistance Program. Rosenthal sued for libel, and the trial court denied the magazine’s anti-SLAPP motion to dismiss. The Court of Appeals affirmed, over the dissent of Justice Brown. The majority held that Rosenthal had established a prima facie case for defamation because the “gist” of the article was an accusation of welfare fraud, which the opinion backs up with a colorful history of the term “welfare queen.” Justice Brown disagreed, arguing that the article was a satirical critique of a welfare system “that allows a woman with a criminal history of theft, living in a million-dollar home, and taking advantage of the highly rated school system of a wealthy enclave, to collect food stamps.”

With September upon us, the Supreme Court of Texas will begin a new court year with its first round of oral argument this week. The Court will hear argument on Tuesday, Wednesday, and Thursday.

On Tuesday, September 1, 2015, the Court will hear argument in just one case—school finance (again). The case is No. 14-0776, Williams v. Texas Taxpayer & Student Fairness Coalition, et al. This is a direct appeal from a trial court judgment (after two separate bench trials) finding that the state’s public school finance system is unconstitutional. As would be expected, the case has drawn a lot of attention, including at least 18 amicus briefs or letters. The Court has allocated more than two hours for oral argument. You can watch oral argument live (or go back and watch the recording later) here.

“The goal as a company is to have customer service that is not just the best but legendary.”

Sam Walton

Increasing revenue, building loyal client relationships, and having a competitive edge over rivals – these are just a few of the many goals of a law firm.

Do you know there’s a magical success formula that can help your law firm achieve these goals? Enter outstanding client service.

There is a sea of law firms in the U.S. What can help differentiate your law firm from the others is not just the legal expertise you offer, but also the client service that you provide. In the current marketplace, exceptional customer service can promote client loyalty and prevent client base attrition.

In a recent ruling, the National Labor Relations Board has adopted a new standard regarding joint employers. Joint employers is a relatively new creation in the area of labor and employment law. Joint employers, as the name suggests, refers to separate employers both being employers of the same employee. Many years ago, I worked on a case in which a large office supply house contracted out its drivers to a third party. One day the drivers worked for Acme Office Supply. The next day, they worked for Speedy Delivery Service. Based on many factors, the drivers were eventually found to be employees of both entities. Yet, both entities had completely different ownership structures.

That situation was more apparent. It was obvious the large office supply company was trying to avoid liability when it switched to a third party. And, since the large office supply business still actually supervised the drivers in every way, it was easy to see that Acme Office Supply was still an employer, at least in part. But, what if Speedy Delivery hired some of the old drivers, but not all? What if Speedy Delivery had its own human resources department? And, what if Acme had some employees on-site, but so did Speedy Delivery? That is much like the case in Browning-Ferris Industries, 362 NLRB 186 (8/27/2015). BFI operated a recycling center. BFI hired and supervised the employees who worked outside the center. But, to perform the functions of sorting and cleaning the items inside the center, BFI contracted with Leadpoint Business Services. The chief Leadpoint person reports to his corporate office in Arizona.

The Board noted that the common law test for joint employers up to now has focused on control. Who controls the employee? If both entities control, then both entities are employers. The Board then looked to the test for independent contractors, which does look at who may control the employee, not necessarily who actually does control the employee. There was some evidence that BFI exercised control over some Leadpoint employees. But, the Regional Director found these instances were too infrequent to establish control. The national level Board, however, focused not on actual control but on the degree to which the second entity could control. So, the Board by a 3-2 vote, decided that no longer will it be necessary to show that the second entity must actually exercise that authority which it possesses over the employee. Browning-Ferris, at p. 15-16 (slip opinion).

The Board then noted that BFI though its agreement with Leadpoint, possessed “significant” control over who Leadpoint hired. Although BFI did not participate in Leadpoint’s day-to-day hiring decisions, it “codetermined” the outcome of that process by imposing specific conditions on Leadpoint’s ability to make hiring decisions. Even after Leadpoint has determined that an applicant meets the required qualifications, BFI still retains the authority to reject that employee “for any or no reason.” BFI retained the authority to “discontinue” any of the personnel assigned by Leadpoint. Two BFI managers testified that BFI has never discontinued any employee or has ever been involved in discipline. But, said the Board, two such incidents occurred in which BFI requested the immediate dismissal of two workers.

So, the Board determined that BFI was mis-leading. Prevarication to a tribunal always leads to problems for that entity.

The Board also found that BFI exercised indirect control over the speed and methods of Leadpoint’s work. The speed of the conveyor belts has been a source of constant tension between BFI and Leadpoint. Apparently on their own, BFI personnel have coached Leadpoint personnel on how to work smarter, faster – with no apparent involvement of Leadpoint managers. Since BFI retained “ultimate control” over the sorting and sifting lines, the Board found it difficult to see how Leadpoint could bargain with a union over issues involving work speed and breaks. BFI also assigned work positions, and assigned specific tasks that need to be completed. It dictated the number of workers needed and the timing of the work shifts.

Regarding wages, BFI played a significant role in the rates of pay and how the Leadpoint workers were paid. Under the terms of the agreement, Leadpoint may not pay its employees more than BFI pays its employees.

So, yes, this decision is possibly far-reaching. The standard for many principles of employment and contract law start with NLRB decisions. If the NLRB finds that indirect control is “control” for purposes of the National Labor Relations Act, then that certainly could spread to other employment statutes. The other day, I heard one reporter say this could affect franchises and their corporate headquarters. Yes, indeed. If McDonald’s requires its franchisees to establish certain work schedules, pay certain wages and even positions the workers in the work area, then that would certainly make them a joint employer of the local McDonald’s employees. See decision here.

This is a 3-2 decision. That means when the next President comes into office and points his two new members of the board, this decision could change. But, until then, we have a very new standard that will change the outcome of many cases. This decision is a game;changer.

Friday, August 28, 2015

To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.

Financial institutions, outside the U.S. have been taking numerous steps to advise their U.S. born clients and U.S. resident clients about the reporting of their account information to the U.S. Internal Revenue Service.

These letters take various forms, depending upon the institution. In short, they normally say that as a result of the “Foreign Account Tax Compliance Act” (aka – FATCA, which comes from the newly created Chapter 4 of Subtitle A of the Internal Revenue Code, Title 26) they will be providing various account information to the U.S. Internal Revenue Service.

Some institutions are accelerating the information provided to include the account number, account holders/owners, balances and income from all sources. FATCA does not require all of this information until it is fully phased in over the next couple of years.

These FATCA letters are no longer just for U.S. taxpayers with non-U.S. accounts. Countries throughout the world are using the exchange of information agreements between the U.S. Treasury and other countries, the Intergovernmental Agreements to notify their taxpayers that soon information about their U.S. accounts will be made available to their tax authorities. See, recent Mexican articles released including August 26, 2015, in the El Siglo de Torreón, titled Preparan SAT y EU auditorías: ”

In early 2012, the Dallas Court of Appeals reversed a temporary injunction that would have prevented BB&T from foreclosing on a pair of properties secured by a $10 million promissory note. Two and a half years later, matters have not improved for the borrowers, as the Court has now affirmed summary judgment for the bank.

In responding to the no-evidence summary judgment motion, the borrowers had “relied entirely on evidence presented at the temporary judgment hearing” to show that they had a valid contract with BB&T that superseded the bank’s right to foreclose. Because the Court had previously held that this evidence amounted to nothing more than an unenforceable “agreement to agree,” the law of the case doctrine prevented the outcome from being any different in this subsequent appeal. The same evidence was also held to be insufficient to support the borrowers’ claims for fraud and declaratory judgment, while a money had and received claim failed because the borrowers had made a $1.8 million payment with full knowledge of the facts and without fraud or duress. Finally, the trial court had not abused its discretion by striking the borrowers’ fifth amended petition because it had been filed outside the deadline in the court’s scheduling order, was not filed with leave of court, and was prejudicial to the bank because it sought to add a claim that “would effectively inject new substantive matters into the litigation by reinjecting old ones.”

Now, Attorney General Paxton wants to cancel the hearing in front of Judge Garcia in U.S. District Court. Judge Garcia ordered Ken Paxton and Kirk Cole, the interim head of the Texas Department of Health, to explain why they chose to violate the U.S. Supreme Court decision regarding gay marriage. Judge Garcia has essentially asked the two agency heads to explain why they should not be found in contempt. I previously wrote about AG Paxton’s problems here and here. He chose to give unlawful legal advice. He did see the error of his ways later, however, and changed policies. As I mentioned before, political posturing will only carry you so far…..

Cell phone video cameras in the hands of people at all levels of society have triggered dramatic changes in law enforcement over the past few years.

Police have been utilizing video and audio equipment for decades, normally affixed to their squad car. The video has always been a great aid to both law enforcement and the citizens accused of offenses because it renders a clear and accurate depiction of what went on at the scene of the arrest. It protects officers from unfounded claims of brutality and harassment but also protects people from exaggerated criminal charges or claims in court.

So why is what we see on video now so much more dramatic than we’ve ever seen before? Simply do a google search for “police brutality caught on tape” and you’ll see video after video of questionable conduct (or sometimes flagrant) police mis-conduct.

The simple answer is police are no longer in control of who, what, when and how incidents are video taped. The cameraman has changed.

A squad car video has a limited lateral range. For instance, when an officer has to leave his or her car and go to chase a suspect on foot or enter a house during a domestic call, the camera can’t follow though audio is often still available. An officer has a good idea when they’re on and off camera based where they’re standing in relation to the car.

Police do have limited discretion when it comes to what gets recorded. Virtually all squad cars cameras turn on when the over-head lights are triggered (barring technical malfunctions or very small police agencies). Sometimes an officer turns off the audio recording. Though this may be a no-no, it is very difficult to prove and most jurors are indifferent to such happenings.

Cell phone video cameras from citizens can record a police officer at any time, at any place and from any angle. Unfortunately for police, the videos where people record an officer being professional and doing outstanding work don’t go viral. The fact an officer can wake up any morning knowing by the end of their shift they could be on the cover CNN.com must be undoubtedly unnerving.

Prudent officers must realize this new reality and should be on their best behavior at all times — not just when they know they’re actions are being recorded by their own equipment. The vast majority already are.

*Jeremy Rosenthal is an attorney in McKinney, Texas. He is Board Certified in Criminal Law. Nothing in this blog should be considered legal advice. For legal advice about any situation, you should contact an attorney directly. Communications through this forum are not confidential.

In an important case for any employer that has Employment Practices Liability (EPL) coverage (and lawyers that represent clients with EPL insurance), the Dallas Court of Appeals recently held that the communications between an employer’s in-house counsel and its EPL insurance adjuster were privileged communications and exempted from discovery. In In re Texas Health Resources, the dispute arose over a Texas Health Presbyterian Hospital (Presbyterian) nurse’s claim that she contracted Ebola when Presbyterian’s parent company, Texas Health Resources (THR), allegedly failed to properly prepare its affiliated hospitals to respond to Ebola and that, in an effort to mitigate the economic and reputational damage of the incident, invaded the nurse’s privacy while being treated as a patient at Presbyterian. The nurse brought claims against THR for negligence, gross negligence, premises liability, negligent undertaking, gross negligence, invasion of privacy and fraud. No claims were brought against Presbyterian, presumably because it had workers’ compensation insurance coverage and such claims against Presbyterian were barred. The nurse was receiving workers’ compensation benefits at all relevant times.

THR moved to abate the case arguing that the Texas Department of Insurance Workers’ Compensation Division had exclusive jurisdiction over the question of whether THR was also the nurses employer and thereby also obtained the benefit of the workers’ compensation bar against claims against THR. At issue in this discovery dispute was a Hartford insurance adjuster’s Diary Note regarding conversations between THR’s associate general counsel, THR’s risk manager and the adjuster. The notes were maintained in a file related to investigation and defense of claims under the employer’s liability portion of THR’s workers’ compensation and employers’ liability policy. All notes were made after the nurse sent an initial demand letter to THR. The nurse sought to compel production of the adjuster’s notes and the trial court signed an order compelling production of a portion of the notes. THR sought mandamus relief from the court of appeals.

The Dallas Court of Appeals held that the note was a communication protected by the lawyer-client privilege. It distinguished this case from other cases that holding that adjuster’s notes of communications with employers adjusting workers’ compensation claims because in this case, the insurance company was investigating and adjusting matters related to an Employment Practices Liability insurance policy. Significant to the court’s analysis was the fact that in a workers’ compensation case, the insurer is defending against itself whereas in an EPL claim, the insurer is defending on behalf of the insured employer. As the Court observed,

Insurance companies typically have the duty [under an EPL policy] to conduct the defense of the insured under the liability policy, including the authority to select, employ, and pay the attorney. Such liability policies “typically give the insurer ‘complete and exclusive’ control of the defense” including the ability to obtain professional legal services on behalf of the insured.

Because of the relationship between an EPL carrier, the employer and defense counsel, the Court held that “under proper circumstances, communications between an insurer and its insured may be shielded from discovery by the lawyer-client privilege. In the case, the notes at issue were made in the course of investigating THR’s claim under its EPL policy. The EPL claim file was opened after receiving the nurse’s demand letter. The notes at issue involved descriptions of conversations with representatives of THR, including a lawyer involved in the decision-making process about the defense of the claim and the adjuster who was working on the EPL claim. The notes reflected that the discussions related to the defense of the claim. Taken all together, the court held that the notes at issues were privileged communications protected by the lawyer claim privilege.

This is an important case for lawyer representing employers under EPL policies. The privilege to provide an insurer who has the duty to defend, adjust and pay claims with candid advice, evaluations and recommendations about covered litigation is as important as the lawyer’s need to provide that information to the employer-client. In my experience, most experienced opposing counsel representing employees do not seek to intrude upon the sanctity of these communications by attempting to obtain them, this is a case that should be in any attorney who represents EPL insured’s research files.

Recently, a client of Roberts and Roberts purchased a used car from a local used car dealership. He bought the car “as is”, so he and his family knew they would be responsible if anything broke on the car. What he and his family did not know was that the car they had purchased was subject to a safety recall for a problem with the steering. Two days later, his car veered into oncoming traffic, and he was severely injured. Whether his accident was the result of a defect in the steering is still under investigation.

Similarly, a family in California rented a vehicle from a large rental agency so that their daughters could travel across the state. Unfortunately, and unbeknownst to the family, the rental car was also subject to a recall for a potential fire hazard caused by a power steering leak. Halfway through the trip, the sisters were killed when they lost control of their vehicle and struck another truck, bursting into flames. In that case, a California jury found that the defect was a cause of the two girls’ deaths and held the rental agency civilly liable.

In today’s modern world, we hear about automobiles being recalled all of the time. We assume that these defective cars are actually fixed. In truth, most are not.

While this is troubling, what is even more troubling is that rental agencies, car dealerships, cabs, and other businesses that use, rent, or sell vehicles are under no legal obligation to fix a vehicle that has been recalled, take a vehicle that is the subject of a dangerous safety recall out of service, or even notify the customer that they are driving a potentially defective vehicle.

In a report, the American Prospect detailed problems and consequences of laws to require mandatory disclosure and repair by rental agencies and used car dealerships. There are obvious safety advantages to requiring these companies to make sure they are inspected and a known recall is repaired. Car dealership owners, however, note that one day their vehicles could be perfectly safe and be subject to a recall the very next day, which would not only prevent them from selling cars (their livelihood), but force them to spend thousands of dollars to repair used vehicles.

Many state legislatures are realizing the imbalance and have begun drafting laws that require repairs of the most serious defects and warnings to consumers of less serious or life-threatening defects. There are currently no such laws in Texas that address or attempt to regulate the sale or rental of recalled cars subject to a safety recall.

If you, or someone you know, have been seriously injured in an unsafe or defective vehicle, call the personal injury attorneys of Roberts and Roberts. For more than 30 years, these personal injury attorneys have helped protect consumers and get them compensation for their injuries. The call costs you nothing… it could mean everything.

Infidelity is one of the reasons people seek divorces, and when cheating is involved, Texas residents know that the tension and hurt are usually more intense. The discovery of an infidelity might make it more challenging for the wronged spouse to think logically about the divorce situation. The leak of the email accounts of 37 million Ashley Madison users leads to the questions if and how a spouse’s Ashley Madison account can impact a divorce.

People might think that finding out that a spouse has an Ashley Madison account might automatically result in the wronged spouse getting all they want in a divorce decree. The reality is different, and even if a person’s spouse was using the site to look for extra-marital affairs, judges still need to focus on the state law when granting a divorce. All states have some version of no-fault divorce laws, which means the reasons are not taken into consideration.

However, there are some ways the discovery of an Ashley Madison account can impact a divorce. One way is through finances. If the other spouse can provide credit card proof, for example, of how much their spouse spent on the site and how much the person spent on the affair, then it might be possible to get that money back as part of the settlement. Another way is by using the cheating spouse’s guilt as leverage when negotiating settlements.

The end of a marriage can be an emotional time, regardless of the reasons behind it. A family law attorney might counsel a client who is going through one to be clearheaded when negotiating a settlement agreement.

Thursday, August 27, 2015

The plaintiff in International Marine LLC v. FDT proved 33 breaches of the noncompete provisions of a contract related to the chartering of tugboats. The district court and Fifth Circuit agreed that a liquidated damages clause applied to the last several breaches. As to the first five, however, the Court reasoned that the clause “would impose an unreasonable penalty, because due to the parties’ conduct, we know the extent of damages [Plaintiff] suffered from each of these breaches.” It noted: “For over a century, courts have refused to award liquidated damages for contractual breaches solely involving default on payment obligations.” No. 14-31192 (Aug. 10, 2015, unpublished).

Opinion here and below. (h/t: How Appealing) The trial court had reviewed depo transcripts well after they had been taken, formed the view that the attorney had been improperly obstructive, and issued a novel sanction (i.e., the attorney was required…

UBS Puerto Rico clients have reported over the last few days the receipt of unsolicited settlement offers from UBS Puerto Rico for losses in customer accounts. The letters, which appear to be dated August 20, 2015 and are from Roberto Fortuno, Managing Director of the UBS San Juan Complex, offer small amounts for losses. The letters appear to be a part of last year’s UBS settlement with the Puerto Rico Office of the Commissioner of Financial Institutions, whereby UBS Puerto Rico was ordered to pay some customers for losses in UBS’s proprietary closed-end bond funds. As a part of that settlement, UBS Puerto Rico was ordered to identify similar customers and also offer to pay them as well.

While an unsolicited offer from UBS may seem like good news, we at Shepherd, Smith, Edwards & Kantas caution any customers who receive such a letter to consult an attorney before signing anything. The letters indicate that an agreement to take the money will require customers to come to UBS’s offices in San Juan or Ponce and sign a release. Such releases are typically very broad and may result in customers losing rights that have nothing to do with the losses in the closed-end funds. Moreover, our experience with UBS in these cases is that UBS’s opinion of losses is very different than most clients. As a result, anyone who receives such a letter should contact counsel to make sure they have representation. According to the letters our firm has reviewed, the offers are only open for 30 days, so time is of the essence.

The attorneys at Shepherd, Smith, Edwards & Kantas have over 100 years of combined experience in securities law and the securities business. We represent clients all over the globe in investment losses. In particular, our Puerto Rico team has been working with dozens of clients for almost two years in these cases. If you receive a letter from UBS or have lost money in Puerto Rico investments with UBS, Banco Popular, Santander or any other firm on the island, please call us for a no cost, no obligation consultation about your rights.

Since we published Part 3 that discussed the details of an interesting case here in Houston, Schlumberger v. Rutherford, the First Court of Appeals issued its opinion on Tuesday. The best description of the decision is a punt. The court found it does not have jurisdiction to consider a partial granting of a motion to dismiss under the Anti-SLAPP provisions or TCPA and summarily affirmed the denial of the part of the motion related to the breach of contract claim. You can read the opinion here: Schlumberger v. Rutherford

While disappointing for Schlumberger and practitioners like us, it may be the right decision. The Anti-SLAPP statute allows for an appeal of order that “denies a motion to dismiss filed under Section 27.003.” TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12). As pointed out by the court, “[b]y contrast, no statute expressly provides for interlocutory appeal of an order that grants such a motion.”

Because the court only dismissed some of the claims and the case is still proceeding, it is considered an “interlocutory order” which is not subject to an appeal under these circumstances. For Schlumberger to appeal, it has to proceed to trial on the parts of the case that remain, such as breach of contract, and then decide whether or not to appeal after a final trial or other resolution of the entire case.

What about the breach of contract claim?

As you may recall, the trial court denied Rutherford’s Anti-SLAPP motion to dismiss as it related to her breach of contract claim. Because that was a denial of the motion to dismiss, the court of appeals determined it could consider only that part of the decision.

The court stated that standard that the party moving to dismiss, in this case Rutherford, had to establish that she was engaged in one of the three protected activities: (1) the right of free speech; (2) the right to petition; or (3) the right of association. If the moving party does this, then the party trying to defeat the motion to dismiss, Sclumberger, has to establish “by clear and specific evidence a prima facie case for each essential element of the claim in question” — in this case, breach of contract.

Unfortunately, the court of appeals glossed over the important first issue – does the TCPA even apply in this case and went straight to a consideration of whether Schlumberger could provide clear and specific evidence of each element of its breach of contract claim. There was no discussion from the court as to whether Rutherford was engaged in: (1) the right of free speech; (2) the right to petition; or (3) the right of association. Can we assume that the court of appeals found she did engage in one of those activities in light of the fact that they glossed over it and went straight to the second step of the analysis? Maybe, that’s what lawyers are likely to argue if they want a broad application of the act.

As a result, we may now have to wait to see if the case goes to trial and is then subsequently appealed to determine whether the trial court got it wrong or right. Until then, the case goes back to the trial court and the large sanction penalty related to the granting of the motion to dismiss on the misappropriation of trade secrets, conversion, breach of fiduciary duty, and violation of the Texas Theft Liability Act claims stays in tact.

I ask because I was looking at a well known firm’s blog posts. I thought the headlines were extraordinarily too long for search engines and social media, the font was too small and the paragraphs too long.

Here’s another little-known rule that a lot of blogs break. In order for your eye to easily follow one line to the next, you want no more than 75 characters in each line. This is called the line measure. Beyond a measure of 75 characters, it’s hard to track the end of one line to the beginning of the next without getting lost.

Since January 1, 2007, I’ve surveyed decisions by the 13 U.S. courts of appeals almost every working day.

The experience has highlighted for me a range of quirks — from their highly variable websites to their peculiar schedules for releasing opinions to the small-bore or high-caliber of the disputes they decide to the great range of writing talent.

I’ve also learned that they vary a lot in their openness. That trait manifests itself most obviously in the seemingly mundane information they provide (or withhold) in the captions of their opinions about the cases they decide.

Today I finally took a look at how transparently these geographically, culturally, and philosophically diverse courts deal with facts that can aid people like you and me in assessing how well they do their jobs.

[See examples from all 13 of the courts at the end of this post.]

The basics

Some things appear in all the courts’ opinions:

The names of the judges on the panel.

The number of the case in the court of appeals.

The date of the court’s decision.

The name of the district court in which the case originated.

The identities of the judges — and particularly of the judge who authors the unanimous or majority opinion — of course does provide important information, but even there the judges may decide to obscure authorship by using the “per curiam” (by the court) device. The other bits of data tell you almost nothing that could help you evaluate the quality of the panel’s work.

Lack of transparency

Most of the courts of appeals do a good job of providing additional indicia regarding the judging process. But a minority of the courts stand out for their opaqueness:

Four (the Fifth, Eighth, Tenth, and Eleventh) do not name the district judge whose rulings they review.

Another four (the First, Second, Fifth, and Eighth) leave out the district court case number.

Five (the First, Fifth, Tenth, Eleventh, and Federal Circuits) omit the date of oral argument or submission.

In yet another quad (the Fifth, Seventh, Eighth, and Eleventh Circuits), opinions make no mention of counsel.

You may not think that these information deficits matter, but if you do I beg to differ. Leaving out details like these deprives the most knowledgeable observers — other judges, lawyers, legal reporters, and bloggers — of tools that can help them evaluate the quality and persuasiveness of the appellate judges’ work.

Your confidence in a Second Circuit ruling, for instance, might turn in part on whether the modern equivalent of Learned Hand or an imperious tyrant presided over the case in the district court. You would also like to know the identity of a trial judge who did something outlandish so you could either avoid his court next time or at least take his failings into account if you wind up before him anyway.

As for the case number in the district court, if you don’t know it, you’ll have trouble finding the relevant decision online through PACER. You may not (probably won’t) bother looking for it (who has the time?).

A big lag between argument of an appeal and the court of appeals action on it also undercuts the credibility of the decision. What took so long? What effect will the delay have on the lawyers’ ability to present the merits of the case? Can you remember the facts?

Finally, the failure to identify the lawyers who briefed and argued the appeals may seem innocuous, but again the knowledgeable observer will form a judgment about the court’s decision partly from the reputation of the parties’ counsel. You can also call them if you have their names handy.

Not all bad

The Second and Ninth Circuits stand out for offering a summary of each decision. The former far outperforms in the elegance of its precis, but both get big points for making the extra effort to enhance the understanding of their audience.

All in all, the courts of appeals do a splendid job with the work they have before them. A bit more transparency can make their product even better.

Well, it is hardly a surprise. The Fourth Court of Appeals has affirmed the district court and found that the University of the Incarnate Word Police Department is not an “arm of the state.” It is not a government. I previously wrote about this frivolous appeal here. See San Antonio Express News report.

UIW says they will appeal to the state Supreme Court. Who knows what the Texas Supreme Curt will do. They will go to great lengths to assist defendants in personal injury lawsuits.

Personal assistants are often the untouted heroes of a business. Little sleep, intense focus, and ridiculously good organizational skills are needed to be a personal assistant of CEO’s and Presidents. Many personal assistants also wear a lot of hats. They are notetakers, meeting schedulers, children picker-uppers, doctor appointment schedulers, and outlets for the people they assist.

With the title of Personal Assistant, comes the knowledge that your standard nine to five hours and forty hours per week probably isn’t going to happen. A personal assistant is often attached at the hip of the person they are assisting. Most of those people work way more than forty hours per week. This begs the question, are personal assistants eligible for overtime?

Unfortunately, the short answer is no. The reasoning is laid out in the Fair Labor Standards Act in sections where job descriptions and duties are described. According to the FLSA regulations, an employee working in a bona fide administrative capacity, earning a salary of no less than $455 per week, who does not perform manual work directly related to management, and whose duty includes an exercise of discretion and judgement is considered exempt.

This is a long way of stating that any administrative type work from a personal assistant or executive assistant is not considered eligible for overtime pay. However,there are cases in which personal assistants have foughtand won in overtime pay claims. This rare situation occurs based on the description of job duties. If the administrative tasks of the personal assistant are a small portion of the actual job duties, there is a chance that a personal assistant could qualify for overtime. Performing personal work for an executive, such as picking up children from school, scheduling doctor appointments, and managing personal purchases are all considered non-administrative work. Therefore these job duties are not exempt from potential overtime pay.

When it comes to being a personal assistant, primary job roles and tasks are key in proving if you should or should not be eligible for overtime pay.

If you are in need of a Texas overtime lawyer, contactVethan Law Firmby calling our Houston office at 713-526-2222 or our San Antonio office at 210-824-2220.

Wednesday, August 26, 2015

The price of oil hovers near $40 per barrel. There are all manner of responses suggested to this drop from nearly $100 per barrel just a short time ago. Yet the price of oil has long been much more than a political conversation, sometimes it leads to innovation. Today we celebrate the birth of the […]

Air travel has been revolutionized over the last two years–for me at least. First, the FAA eliminated the idiotic rule that prevented me from using my phone during takeoff and landing. That would eliminate roughly 30 minutes of productivity from every flight. Second, United (my airline of choice in the hub of Houston) has expanded Wi-Fi coverage to almost its entire fleet. This has increased my productivity in ways I can’t even describe, especially on flights during the day that are more than 2 hours long. On flights where the middle seat has been empty, I’ve even been able to set up my second monitor. With Wi-Fi, I can do everything I could do on the ground, in the air. I’ve even purchased the WiFi over my phone, and tethered over bluetooth to my laptop, so I can stay online without paying again when the laptop ban goes into effect during takeoff and landing. It has been a game-changer.

United, unlike American and Delta, does not rely on Gogo. Rather, it uses its own proprietary service, United WiFi. Unfortunately, United does not allow for a monthly subscription, but the FAQ says “we may offer these options in the future.” As a result, I pay the full price every time I fly. I’ve noticed that the rate bounces around, almost randomly. Here is a sampling:

IAH – EWR, 3 hours cost $11.97 (Friday)

IAH – MIA, 2 hours cost $7.98 (this was a mistake, as there was no coverage over the Gulf of Mexico)

IAH – DCA, unlimited for $6.99 (Sunday)

IAH – DCA, unlimited for $4.99 (Friday)

IAH – EWR, unlimited for $3.99 (Thursday)

IAH – EWR, unlimited for $8.99 (Wednesday)

In other words, the prices for the same destinations are all over the place, even on the same trip. I suspected some sort of surge pricing was in effect. The New York Times confirms this may be the case, at least with respect to GoGo.

Consider the following increases: Wi-Fi service on transcontinental flights — such as from San Francisco to New York, from Boston to Seattle or from Los Angeles to New York — now cost $28 to $40, up from roughly $18 in 2012, according to Gogo.

Yet those numbers rarely show up in the average price quote for an in-flight Gogo Wi-Fi session, which now amounts to about $12, up just slightly from $10 in 2012. That’s partly because on flights where fewer people are likely to use Wi-Fi, pricing has remained unchanged, which brings down the average cost per session. For example, Gogo’s Wi-Fi service on flights between New York and Fort Lauderdale, Fla., has cost $10 since 2012. In addition, passengers can choose to pay smaller amounts to use Wi-Fi for a portion of a flight instead of the entire trip.

Gogo’s prices are not just higher now; they are also more unpredictable. The company uses a method called dynamic pricing, in which it tries to forecast the demand for Wi-Fi on each flight and scale pricing accordingly. So the prices for the full durations of transcontinental flights also change each day: Gogo charges the most, $40, on Mondays and Thursdays; Tuesdays, Wednesdays, Fridays and Sundays cost $34; and Saturdays are the cheapest, at $28.

At first travelers may balk at the high prices, but there is a good reason for it–congestion and limited capacity. Wi-Fi in the air is a classic example of scarce resources.

Michael Small, the chief executive of Gogo, said in an interview that the company had raised prices because demand for Internet service in the sky had exceeded capacity.

“We’re starting to have millions of users, so it’s getting more and more congested, and we have raised prices, which you typically do when you have more demand than you have supply,” he said. “There’s nothing to apologize for. We have trouble finding a business in America that does anything differently.”

Part of the reason Gogo’s costs can be so high is that the prevailing technology it uses has hit some limits. Its in-flight Wi-Fi works like the cellular network that provides service for cellphones, in which antennas are used to transmit signals to and from towers on the ground. Adding capacity is difficult because there is a limited amount of radio spectrum available for the towers.

To improve the situation, Gogo uses satellite technology for over-water flights, and the company is upgrading to a faster satellite technology called2Ku. The new satellite technology, which received regulatory approval on Monday and will be widely released next year, should add capacity and eventually let the company lower prices, Mr. Small said.

“When we start rolling out the satellite technology and bring out more capacity, we’ll be back in the business of trying to bring on new customers and grow the business and introduce exciting new price plans,” Mr. Small said.

Consider Southwest, which does not have variable pricing.

Southwest has about 550 aircraft equipped with Global Eagle Entertainment’s Wi-Fi services, said Kevin Kleist, Southwest’s manager of Wi-Fi and in-flight entertainment. He said the company had experimented with different prices before concluding that $8 was the sweet spot.

“You don’t want to overprice and not get enough customers. And you don’t want to underprice it and get too many and too much congestion,” Mr. Kleist said.

With respect to Southwest, I recently took a flight and paid $8 for Wi-Fi. I noticed that many people on the sold-out flight were signed onto their phones. It was so slow, it became unusable. It was a waste of money. The Wi-Fi on United is really fast. I can even search WestLaw and other cumbersome databases with ease. On Southwest, the same search was so slow it became a waste of time to even try.

I wish United offered an unlimited monthly package, which GoGO does. I would buy it in a heartbeat. Or at a minimum, give customers with status, or who are in Business Class a steep discount.

As my colleague, Kenneth Kan, noted back in May in his blog post, Experts Predict a Strong El Niño This Year, climatologists have been predicting a stronger than normal El Niño for the 2015-2016 season. New data is suggesting the upcoming El Niño will be the strongest on record.
For those unfamiliar, “[a]n El Niño is an above average warming of ocean waters that form off California’s coast. This body of warm water in turn lowers the jet stream, so instead of pushing storms north and around California, the flatter jet stream sends storms straight through California resulting in an extremely wet and stormy winter.”1 To try and determine the severity of an upcoming El Niño, scientists look to the temperature of the Pacific Ocean. “[An El Niño] can be classified as “very strong” if surface waters are running at least 2 degrees Celsius warmer than average for at least three months in a row.”2

Vocada sued Nuance for securities fraud. They had a merger agreement in which they agreed to arbitrate “any . . . dispute relating to the Earnout Consideration.” The Fifth Circuit found that this claim had to be arbitrated, noting: “Although the arbitration clause as a whole is narrow, the ‘relates to’ language is broad.

The guarantors of a construction loan agreement and promissory note sought to avoid a deficiency judgment by disputing a successor bank’s summary judgment evidence that it was the holder of the note. The Dallas Court of Appeals was having none of that oft-repeated claim. In the absence of controverting evidence, affidavit testimony and a copy of the note are sufficient to prove it up for summary judgment purposes, and an affidavit is likewise sufficient to establish ownership or assignment of the note. Because none of the summary judgment evidence contradicted the bank’s affidavit testimony, summary judgment for the deficiency was properly granted. The Court went on to rule that the bank was not required to include a complete history of payment activity on the account as part of its summary judgment evidence, and that the guarantors’ own affidavits did not create a fact issue on the issue of the property’s fair market value.

On Friday, August 14, Conroe was rocked by a massive explosion at the DrillChem Drilling Services plant on North Loop 336. Investigators now say that they do not suspect foul play.

The explosion and fire, which started about 4:30 in the afternoon, took about four hours for firefighters to bring under control. There are no reported injuries to date, as the plant reportedly closes early on Friday, but one firefighter was transported to the emergency room to be treated for heat exhaustion. Residents within two miles were ordered to shelter in place for several hours.

Conroe Fire Marshal Mike Legoudes said at a press conference last Wednesday that the explosions were “accidental in nature.” He said that investigators are focused on at least three possible ignition sources: electrical issues, a potential gas leak, or old oily rags reported to be inside.

DrillChem is an oilfield chemicals company established in 2000 that produces sealants, shale inhibitors, and lubricants, according to its website. The DrillChem facility had no known inspection issues, but DrillChem had only been at the building for about a year. While DrillChem’s founder and CEO, James R. Hayes, spoke at the press conference with Fire Marshal Legoudes, he did not disclose what types of chemicals were present in the fire. He maintained that there was no air pollution or contamination outside the plant.

If you or someone you know has been injured in an industrial accident, contact an attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend by calling 713-222-7211 or toll free at 1-800-870-9584.

If you have read our introduction to federal criminal law, you have a basic understanding of how sentencing works in the federal system. While the advisory sentencing guidelines may call for harsh sentences for most offenses, there are a limited number of ways to have reduce a sentence imposed by the court. 18 USC 3553(a) sets out a number of factors a court must consider in imposing a sentence.

Section 3553(a)(1) requires the court to equally consider:

the nature and circumstances of the offense and the history and characteristics of the defendant;
the kinds of sentences available;
the kinds of sentence and the sentencing range;
any pertinent policy statement issued by the Sentencing Commission;
the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
the need to provide restitution to any victims of the offense.

Additionally, Section 3553(a)(2) requires the sentence imposed to:

reflect the seriousness of the offense, to promote respect for the law and to provide just punishment for the offense;
to afford adequate deterrence to criminal conduct;
to protect the public from further crimes of the defendant; and
to provide the defendant with needed educational or vocational training, medical care or other correctional treatment in the most effective manner.

There are a limited number of ways for a sentence to be reduced based on statutory exemptions or through rehabilitation programs. The most significant sentence reducers in the federal system are described below.

A “safety valve” is an exception to mandatory minimum sentencing laws. A defendant who meets the criteria is exempt from any statutory minimum sentence of imprisonment and statutory minimum term of supervised release. Safety valves apply to a variety of crimes and offenders, following that the offender meets certain conditions.

Requirements:

The defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
The defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
The offense did not result in death or serious bodily injury to any person;
The defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in the Controlled Substances Act; and
Not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.
Applies to convictions under 21 U.S.C. Sections 841, 844, 846, 960, or 963.

The court has the authority to impose a sentence below the level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. There is no limit to the reduction of this sentence, based on the court’s evaluation of the offender’s assistance.

Appropriate reasons for reduction determined by the court:

The court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into account the government’s evaluation of the assistance rendered;
The truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
The nature and extent of the defendant’s assistance;
Any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
The timeliness of the defendant’s assistance.

If the defendant provides substantial assistance to the government after his/her sentencing, while the government is investigating or prosecuting another person, the defendant is eligible at the court’s discretion for a reduction of his/her sentence at a level below the minimum sentence established by the statute.

A motion to reduce can be made more than one year after sentencing stating that the defendant’s substantial assistance involved: information not known to the defendant until one year after sentencing, information provided by the defendant within one year of sentencing but was not useful until more than a year later, or information which the defendant did not anticipate to be useful until more than one year after sentencing, was provided to the government after its usefulness was realized.

Drug rehabilitation is a treatment program for eligible defendants who are determined by the Federal Bureau of Prisons (BOP) as having a substance abuse problem and are willing to participate in a residential substance abuse treatment program. The Residential Drug Abuse Program (RDAP) is an intensive six-month program. The defendant must have been convicted of a nonviolent offense and have no detainers or INS holds to be eligible for rehabilitation.

After successful completion of the treatment program, the period of custody may be reduced by the BOP by up to one year; the reduction of the sentence is at the discretion of the Director of the BOP.

The “good time” reduction encourages and rewards rehabilitation and discourages rule breaking in prisons. Good time reductions are at the discretion of the BOP. A federal prisoner may obtain 54 days of good time credit for every year that they serve.

Eligibility for Good Time Reduction:

Defendant is serving a term of imprisonment of more than one year, but less than life.
Defendant, as determined by the BOP, has displayed exemplary compliance with institutional disciplinary regulations.
The BOP considers whether the prisoner is making satisfactory progress toward earning a high school diploma or equivalent degree.
The defendant may receive credit, beyond the time served, of up to 54 days, per year, for each year served of the sentence at BOP discretion.

A defendant may be released from prison to a halfway house up to 12 months prior to sentence expiration date at discretion of BOP and the availability of halfway house facilities.

The release to a halfway house is determined on an individual basis. The time given to the defendant to spend in the halfway house should be of sufficient duration to provide the greatest likelihood of successful reintegration into the community. While in the halfway house, the defendant remains in Federal custody and is monitored 24 hours a day.

Determining whether or not to release a prisoner to a halfway house, the BOP will consider the following before making a decision:

The resources of the facility in question;
The nature and circumstances of the offense;
The history and characteristics of the prisoner;
Any statements by the court that imposed the sentence concerning the purposes for which the sentence to imprisonment was determined to be warranted or other recommendations; and,
Any pertinent police statement issued by the US Sentencing Commission.

The following prisoners are not eligible for halfway house placement:

Those assigned a “Sex Offender” Public Safety Factor (but though those convicted of possession of child pornography are permitted to go to halfway houses).
Those assigned a “Deportable Alien” Public Safety Factor.
Those requiring in-patient medical, psychological, or psychiatric treatment.
Those who refuse to participate in the Inmate Financial Responsibility Program.
Those who refuse to participate, withdraw, are expelled, or otherwise fail to meet attendance and examination requirements in a required Drug Abuse Education Course.
Those with unresolved pending charges, or detainers, which will likely lead to arrest, conviction, or confinement.
Ordinarily, those serving sentences of six months or less.
Those who refuse to participate in the Institution Release Preparation Program.
Those who pose a significant threat to the community (e.g., prisoners with repeated disciplinary violations that involve violence or escape).
Pretrial, holdover, or detained prisoners.

If you have been charged with a federal offense, contact the attorneys at Varghese Summersett PLLC. Our attorneys include former federal prosecutors and we regularly handle complex federal criminal cases throughout the county. Contact us today at (817) 203-2220.

Isn’t a will all I really need?

Although a will is an important part of an estate plan, it only takes effect after you die. Other documents are needed to carry out your wishes and manage your assets in the event you are temporarily or permanently disabled. I recommend five basic estate planning documents. Read more…

What legal documents do I need?

How often should I update my will?

There are no hard and fast rules about how often you should review your estate plan, but certain life changes, such as a change in your marital status, an addition to your family, a change in the value of your assets, a move to another state, changes in the tax code, and the simple passage of time may trigger a need to update your plan. Read more…

What is estate planning?

Estate planning is the process of making the legal arrangements necessary to protect your family, plan for your personal and health care, and manage or transfer assets in the event of your incapacity or death.

What does an “estate” consist of?

An “estate” consists of all your assets including real estate, bank accounts, stocks and other securities, life insurance policies, and personal property such as cars, jewelry and artwork. The value of your estate is equal to the fair market value of the assets minus your debts. Read more…

Who needs estate planning?

You do, regardless of the size of your estate. Without adequate estate planning, you forfeit your opportunity to make many important decisions such as:

choosing the person who will make health care decisions for you if you are incapacitated and not able to do so

naming a guardian for your minor children in case of your incapacity or death

naming a guardian to manage the assets you leave behind for your minor children and specifying when and how you would like those assets distributed

specifying how and by whom your assets will be managed if you are temporarily or permanently disabled

specifying how and to whom your assets will be distributed when you die

What is estate tax?

The federal estate tax is a tax imposed on the transfer of a “taxable estate” to a decedent’s heirs and beneficiaries. The “taxable estate” is calculated by deducting funeral costs, debts, and assets transferred to a spouse from the fair market value of all assets, including life insurance, in which the decedent had interest at the time of death.

Although every U.S. citizen is subject to the estate tax, the vast majority will never have to pay any taxes at all because a certain amount of a person’s estate is exempt from taxation. Currently, Americans can transfer $5 million, indexed for inflation, without any federal estate tax liability. Assets valued at over $5 million are subject to an estate tax of 40 percent.

Do I have to worry about a state inheritance tax?

What is a living will?

A living will, or directive to physicians, is a document that allows you to instruct your physicians not to use artificial methods to extend your life in the event you are diagnosed with a terminal or irreversible condition.

What is probate?

Probate is the legal process by which a will is proved to be valid or invalid, though current usage of this term has been expanded to refer to the legal process in which the estate of a decedent is administered.

Generally, the probate process involves collecting a decedent’s assets, liquidating liabilities, paying necessary taxes, and distributing property to heirs. These activities are carried out by the executor or administrator of an estate.

Can I use legal software to prepare my estate planning documents?

You can, but by doing so, you run the risk that your estate will not be handled according to your wishes. There are many risks associated with Do-It-Yourself Wills and Estate Planning. Texas has very specific requirements concerning wills. If a will does not comply with all these requirements, it can be declared invalid, meaning that your estate could be treated as though you never had one.

By doing your own estate planning, there is a chance you could misapply the law, use the wrong form, or prepare it incorrectly. Additionally, the one-size-fits-all character of a do-it-yourself plan does not take into account each individual’s unique circumstances, and consequently each of their individual estate planning needs. Read more…

The ruling comes less than a month after a different judge in the same court dismissed a nearly identical suit against Maker’s Mark and less than four months after a federal judge in Florida dismissed another would-be class action against Beam Suntory. See our analysis of the earlier rulings at the Brand Protection Blog post, “Maker’s Mark prevails in “handmade” false advertising suit.”

In each of these cases – and in a similar case brought against Tito’s Handmade Vodka – the plaintiffs were consumers who claimed they purchased the defendant’s liquor because its label contained the statement that it was “handmade.” This representation allegedly led the plaintiffs to believe the product was superior in quality to others. The plaintiffs claimed the labels were false or misleading insofar as the process the defendants use in producing their spirits allegedly involves little or no human supervision or involvement.

In his order of dismissal in Welk, Judge Larry Burns analyzed the earlier rulings in the Hoffman, Salters and Nowrouzi cases and found the latter two decisions persuasive. According to Judge Burns, “Welk’s proposed definition of the word ‘handcrafted’ doesn’t fit the process of making bourbon.” Order at 6.

To make bourbon, grains are ground into ‘mash’ and cooked; then yeast is added, and the mixture ferments; then the mixture is distilled, i.e., heated until the alcohol turns to vapor; then the alcohol is cooled until it returns to liquid form, and transferred to barrels for aging. Fermentation, distillation, and aging are necessary to meet the legal definition of bourbon. Machines, including stills and other equipment, have always been necessary to make bourbon.

Id. (citations omitted).

Thus, the court concluded a “reasonable consumer” would not interpret the word “handcrafted” on a bourbon label to mean that the product was literally “created by a hand process rather than by a machine.” Id.

Analysis

It is worth noting that in Welk, Nowrouzi and Hoffman, the distillers also sought dismissal based on California’s Safe Harbor Doctrine. This doctrine provides that if the legislature permits certain conduct or “considered a situation and concluded no action should lie,” the courts cannot override that determination. See Cel-Tech Comms. Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 182 (1999). In other words, “when specific legislation provides a ‘safe harbor’, plaintiffs may not use the general unfair competition law to assault that harbor.” Id.

In these cases, the liquor producers claimed that the federal Alcohol Tobacco Tax and Trade Bureau (“TTB”) reviewed and pre-approved their labels to ensure they complied with applicable laws and regulations thus providing a safe harbor. However, in each case, the Court concluded that it was not clear – at least at the motion to dismiss stage – that the TTB had actually reviewed and approved the specific label claim (i.e., “handmade”) in question.

It is possible that at a later stage, with a more developed record (i.e., on summary judgment), a court would entertain dismissal based on the Safe Harbor Doctrine. But, if distillers continue winning dismissal on “reasonable consumer” grounds, that theory may never be tested.